College Fund 4.jpgA recent decision of the Appellate Division, Third Department, appears to unduly expand the basis upon which a parent may be obligated to contribute to the college education expenses of a child beyond age 21.

Generally, a parent’s obligation to support a child terminates when the child reaches age 21. That general rule, of course, may be varied by the parents themselves by agreement.

Indeed, it is quite common to extend by agreement a parent’s support obligation, beyond the date on which a child turns  21, in a written separation agreement or divorce action stipulation of settlement, whether written or entered in open court. Such agreements often have an “emancipation” clause which defines the circumstances under which a child will be deemed emancipated for the purposes of the parent’s support obligation to a time either before or after child reaches age 21. Again, it is common to delay emancipation until the child turns 22 or thereafter, if the child is enrolled on a full-time basis in an accredited college, university or other post-high school educational program. If properly entered, such agreements are routinely incorporated into divorce judgments or other support orders. They are enforceable in both Supreme and Family Courts.

In its January, 2012 decision in Shapiro v. Shapiro, the Third Department affirmed a divorce judgment which, in part, obligated a father to contribute his pro rata share of college expenses until each child reaches the age of 22.

The court acknowledged that absent an agreement extending the obligation, a parent is not legally obligated to pay college costs for a child that has reached the age of 21. However, the court found that such an agreement could be inferred from statements which did not expressly exclude post-21 expenses from a statement agreeing to contribute to college. The sole basis of the Third Department’s decision was as follows:

Plaintiff acknowledged in his testimony that he had, in fact, agreed to pay part of the children’s college education costs, there was no indication that he intended to limit his payments to the children’s first three years in college, and proof at trial established that funds had been previously set up to assist in such costs. Under these circumstances, it was not error for Supreme Court to direct plaintiff to pay a portion of the children’s college costs until they reach the age of 22.

Accordingly, the court appears to have deemed it appropriate to extend the child support obligation [solely?] on the basis that a parent has established a custodial account, 529 plan, or other funds ear-marked used for college. No indication was given by the court that anything about the funds here set aside were designed to be used after the child turned 21. Moreover, there should be nothing about the establishment of such funds from which a parent’s obligation to contribute additional funds should be based, whether before or after the child turns 21. Indeed, custodial accounts become the property of the child and may not be controlled when a child reaches majority.

Moreover, a parent should not be required to couch every answer in a support hearing with the caveat, “but not beyond my child turning 21.” Nor should a parent’s attorney be required, as a matter of due course, to specifically inquire whether a parent desires to stop his or her support obligation at the child turning 21.

Why stop at reaching 22? Certainly the child who despite best efforts needs a fifth year to obtain a degree also needs a parent’s support.

It was clear that the appellate court did not like Mr. Shapiro. After all, he appears to have wasted judicial resources and caused his wife unnecessary anguish by successfully contesting the divorce case which his wife commenced in December, 1999, when the parties separated. At that time, there was no no-fault divorce. If the grounds required by New York could not be established, spouses, like the Shapiros, remained married.

The court got “even.” Despite having been physically separated for more than a decade, the court affirmed the decision of Schenectady County Supreme Court Justice Mark L. Powers which awarded Ms. Shapiro a half-share of her husband’s pension which accrued up to the point that Mr. Shapiro started his action in 2008. New York’s Equitable Distribution law gives a trial court a tremendous amount of discretion to do justice when dividing the marital property of the parties. By law, the cut-off date for the acquisition of marital property was, here, when the husband commenced his successful divorce action (not when the wife commenced her unsuccessful action).

Not liking a litigant, however, is not an excuse to bend, if not break long-standing and well-understood interpretations of very clear statutes. Domestic Relations Law §236, itself, imposes significant formalities upon agreements which are intended to vary a couple’s financial rights and obligations incident to their divorce. Those formalities were not followed here. For a court to dismiss those formalities does not do the judicial system “justice.”